The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KARINA BENITEZ, DOCKET NUMBER
Appellant, SF-0752-22-0192-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: March 20, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Karina Benitez , San Bernardino, California, pro se.
Richard I. Anstruther , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her chapter 75 removal. On petition for review, the appellant argues that
her absence without leave was attributable to an undisclosed illness. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to correct harmless error in the
reasonable accommodation analysis, we AFFIRM the initial decision.
The administrative judge found that the appellant is not an individual with
a disability, and thus, not entitled to reasonable accommodation. Initial Appeal
File (IAF), Tab 28, Initial Decision (ID) at 26. Alternatively, he found that she
never requested reasonable accommodation, and so could not establish a
disability discrimination claim based on a denial of reasonable accommodation.
Id. The administrative judge erred in this analysis. Therefore, we modify the
initial decision to apply the correct standard.
The appellant met her burden to establish that she was disabled. An
individual may prove that she has a disability by showing, as relevant here, that
she suffers from “a physical or mental impairment that substantially limits one or
more major life activities.” 42 U.S.C. § 12102(1)(A); 29 C.F.R. § 1630.2(g)(1)
(A). An impairment is considered a disability if it substantially limits an
individual’s ability “to perform a major life activity as compared to most people
in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). Major life activities
include, but are not limited to, caring for oneself, concentrating, communicating,
and working. 29 C.F.R. § 1630.2(i)(1)(i).
While we agree with the administrative judge’s suggestion that the
appellant failed to submit helpful proof of her disability, the record reflects that
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the appellant represented to the agency that she had anxiety and panic attacks for
which she took “strong medication” that affected her memory and her ability to
work consistently. ID at 26; IAF, Tab 4 at 196-97. In response to the proposed
removal, she reported that she had “a very serious illness and [had] been under a
doctor’s care several times a week that also required hospitalization.” IAF, Tab 4
at 40. And, there is a November 2020 letter from the appellant’s psychiatrist
corroborating that he had “been treating [the appellant] for a serious medical
illness” and she would not be able to work for 3 months. Id. at 145. The facts in
the record here are sufficient to find that the appellant was disabled within the
liberal definition of the term. See McNab v. Department of the Army,
121 M.S.P.R. 661, ¶ 7 (2014) (explaining that the Americans with Disabilities Act
Amendments Act of 2008 liberalized the definition of disability by, for example,
expanding major life activities to “the operation of a major bodily function,”
including brain function) (citing 42 U.S.C. § 12102(2)(B)). Thus, we find that
the appellant met the definition of an individual with a disability and modify the
initial decision to reflect this finding.
However, the administrative judge also concluded that the appellant never
requested a reasonable accommodation. ID at 26. The Rehabilitation Act
requires an agency generally to provide “reasonable accommodation to the known
physical or mental limitations of an otherwise qualified individual with a
disability.” 42 U.S.C. § 12112(b)(5)(A); Clemens v. Department of the Army,
120 M.S.P.R. 616, ¶ 10 (2014). A disability discrimination claim will fail if the
employee never requested accommodation while employed. Id., ¶ 12. An
employee only has a general responsibility to inform her employer that she needs
accommodation for a medical condition. Id. Once she has done so, the employer
must engage in the interactive process to determine an appropriate
accommodation. Id.
A November 2020 letter from the appellant’s psychiatrist informed the
agency that he had “been treating [the appellant] for a serious medical illness”
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and she would not be able to work until February 13, 2021. IAF, Tab 4 at 145.
The appellant testified that she was granted leave under the Family and Medical
Leave Act of 1993 (FMLA) to use during this period. IAF, Tab 26, Hearing
Recording (HR), Track 8 (testimony of the appellant). Thus, to the extent the
psychiatrist’s letter requested accommodation in the form of leave, the agency
granted that request.
The appellant did not argue, and has not presented any evidence
suggesting, that she requested an accommodation after she exhausted her FMLA
leave in February 2021. The appellant’s first-level supervisor gave undisputed
testimony that the appellant had not requested leave without pay for leave after
February 2021. HR, Track 3 (testimony of the first-level supervisor). As a
result, the appellant entered an absence without leave (AWOL) status after she
exhausted her FMLA leave. E.g., IAF, Tab 4 at 83, 87, 92 (recording the
appellant as AWOL for dates in April and May 2021). Her first -level supervisor
further testified that the appellant did not reply to his emails or answer his phone
calls during this period and that he could not leave a message because her
voicemail was full. HR, Track 3 (testimony of the first-level supervisor).
In May 2021, the appellant’s supervisor sent a letter to the appellant
expressing his “concerns about [her] work availability” because she had not
reported to work nor contacted him for nearly 1 month, save a single email in
which, in its entirety, she wrote “I have a doctor appt [sic] today. S/L.” IAF,
Tab 4 at 131-32, 139. The supervisor explained that the appellant exhausted her
FMLA leave. Id. at 131. He informed the appellant about the Employee
Assistance Program, Occupational Health Services, and that she could apply for
disability retirement, and he invited her to discuss any questions or concerns with
him. Id.
There is no evidence that the appellant pursued any of these options or even
responded to her supervisor’s letter. Nothing in the record suggests that the
appellant’s supervisor should have assumed that the appellant’s leave after
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February 2021 was related to the medical condition referenced by her doctor in
November 2020. Therefore, the appellant failed to prove that she specifically
requested an accommodation or more generally provided information suggesting
that she needed one. As a result, she did not meet her burden to prove her claim
that she was denied reasonable accommodation. See Clemens, 120 M.S.P.R. 616,
¶ 12.
Therefore, we affirm the initial decision as modified above.
NOTICE OF APPEAL RIGHTS 2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
7
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
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Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.